Executor’s Fees

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Can the executor of a will receive remuneration for their work? At common law, an executor could only receive payment for their services if authorized under the will. However, this presumption against payment has been superseded by section 88 of British Columbia’s Trustee Act. Accordingly, executors may receive payment from three sources, including:

  1. up to 5% of the gross aggregate value of the estate’s capital;
  2. up to 5% of the income generated by the estate’s assets during the period of administration; and
  3. 4% of the average market value of the assets per annum as a “care and management fee.”

These percentages are the statutory maximums that a court or registrar may grant to an executor.  When determining the executor’s remuneration, the court or registrar will consider the following five factors:

  1. the estate’s size,
  2. the degree of care and responsibility required,
  3. the amount of time required,
  4. the degree of skill and ability demonstrated, and
  5. the level of success achieved in administering the estate.

Section 88 of the Trustee Act applies whenever the will is silent with regards to the executor’s remuneration. It also applies to the administrators of intestacies (persons managing the assets of a deceased person who died without a will).

However, the Trustee Act’s remuneration percentages can be superseded whenever a will includes a renumeration clause for the executor. This provision can be implied. For example, at common law, there is a presumption that any gift to an executor is intended to be compensation for the person’s services as an executor, in lieu of a fee.

 

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Enforcing Child Support Orders

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If your child’s co-parent has claimed that they cannot afford to pay their child support obligations, what are your options? Under these circumstances, it is important to remember that child support is the right of the child, not the receiving parent. This means that parents cannot negotiate a lower monthly rate than the minimums prescribed by the Federal Child Support Guidelines. Any such agreement would be considered invalid by the courts.  Instead, there are two primary avenues for enforcing a child support order.

First, the recipient parent’s best avenue to enforce a support order is to register their separation agreement or court order with the Family Maintenance Enforcement Program (FMEP). This is a public organization that assists parents with enforcing both child and spousal support orders. The FMEP can enforce the orders by “attaching” it to the debtor’s income, including wages, tax returns, rental revenues, etcetera. The organization’s Director may also seek a court order to direct the payment of security for future support obligations from larger sources of funds, e.g. an inheritance. If the debtor parent refuses to pay, the FMEP Director may, among other remedies, report them to the credit bureau, seek a seize-and-sell court order, or instruct ICBC to refuse their license and vehicle registration issuance or renewal.

To enroll in the FMEP, you must submit an application which provides details about the paying parent and a copy of your support agreement or court order. The application can be found here. Upon completion, the EMEP will provide a Notice of Enrollment to the paying parent. The key advantage of the FMEP is that it is free. The disadvantage is that the receiving parent cannot undertake any enforcement proceedings themselves while they are registered in the program.

The recipient parent’s second enforcement avenue is to privately seek court enforcement remedies under section 230 of the Family Law Act. Specifically, they may request that the debtor parent pay security for future support obligations, plus legal expenses, up to $5,000 dollars in damages for the delayed payments, and a fine of up to $5,000.  If the debtor further fails to comply with these payments, the court may make an order for their imprisonment for up to 30 days. Importantly, this imprisonment will not discharge the debtor’s support obligations; it is simply an enforcement mechanism. Of course, this is a draconian option that the courts will rarely apply.

For debtor parents experiencing genuine financial difficulty that is impeding their ability to meet their support obligations, they may respond to enforcement action by applying to the courts for a variation order under section 152 of the Family Law Act or section 17 of the Divorce Act. On proof of a material change that renders the original order inappropriate, the court may vary the obligation amount, suspend enforcement proceedings, or make an order it deems otherwise appropriate.

For more information regard child support and their enforcement, please contract our office at (250) 753-2202.

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Can I host A Party At My Home During Covid-19

On August 21, 2020, the British Columbia government announced an anti-gathering order (the “Order”) under the Emergency Program Act. The Order prohibits gatherings greater than 50 people and allows for fines of up to up to $2,000 for party hosts.

While the biggest fine is borne by hosts, partygoers should not rest easy. The Order permits enforcement agencies to issue $200 fines to individuals for several types of infractions, including: promoting a prohibited gathering, failing to abide by an order to disperse, or responding in an abusive manner to public health orders.

The Order gives the police, and other enforcement agencies, the ability to recommend charges to the Crown for egregious violations or repeat offenders. If convicted, hosts could face judicial penalties of up to $10,000.

If you are committed to hosting an in-person party during Covid, you must adhere to the following conditions:

  • have an event organizer;
  • record the full names or participants and their telephone numbers or email addresses and store this information for 30 days;
  • control access to the event;
  • ensure the number of participants does not exceed fifty;
  • ensure there is sufficient space for appropriate physical distancing;
  • ensure participants remain two meters apart, unless they are from the same cohort (e.g. family members);
  • place no more than six people at any table, and all tables must allow for two metres distance between seated participants or place physical barriers between tables;
  • place physical barriers between any live entertainment and the participants at distance of no less than 3 metres; and
  • provide sufficient sanitation resources and bathroom facilities.
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